Opinion
16-P-419
04-10-2017
COMMONWEALTH v. Paul F. FAY, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, acting pro se, appeals from the order denying his motion for a new trial. We affirm.
In violation of G. L. c. 265, § 24C, and S.J.C. Rule 1:15 § 2(c), as appearing in 401 Mass. 1301 (1988), the defendant repeatedly uses the victim's name in his appellate brief and has failed to redact her name from the record appendix. He also has failed to update his current address with the Clerk of the Appeals Court. In the unusual circumstances of this case, we exercise our discretion under S.J.C. Rule 1:15 § 1(b), and order that the defendant's brief and record appendix, along with all additional supporting materials, be impounded.
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Background. In 2012, the judgment on the defendant's conviction of indecent assault and battery on a child, who was six years old at the time of the assaults, was affirmed by a different panel of this court in an unpublished memorandum issued pursuant to our rule 1:28. Commonwealth v. Fay, 81 Mass. App. Ct. 1111 (2012). The defendant moved for a new trial, arguing that he was deprived of the effective assistance of trial counsel. The trial judge denied the defendant's motion, without evidentiary hearing, in a thorough and well-reasoned written memorandum of decision and order. The defendant appeals.
Discussion. Whether a new trial is required because "it appears that justice may not have been done," Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), is a question that "is left largely to the discretion of the judge who presided over the case," Commonwealth v. Pope, 392 Mass. 493, 497 (1984). In reviewing a trial judge's ruling on a motion for a new trial, we accept findings that are "supported by the evidence" and give "[p]articular deference" to the judge's rulings. Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We apply the familiar Saferian standard "[w]here a new trial motion is based on ineffective assistance of counsel." Commonwealth v. Watson, 455 Mass. 246, 256 (2009). See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
We see no abuse of discretion in this case. The judge "was entitled to rely on his familiarity with the trial when deciding" whether trial counsel was deficient, Commonwealth v. Britto, 433 Mass. 596, 602 (2001), and the judge's findings and rulings here are supported by the record. Trial counsel subpoenaed the victim's medical records and prior appellate counsel was permitted to review them; yet, nowhere in the record, as the judge stated, is there "an affidavit from an expert, medical records, or any other evidence to support" the defendant's claim "that the victim may have been under some sort of behavioral disorder" when she reported the abuse or testified at trial. "The defendant bears the burden of proving the facts on which he relies in his motion for a new trial," Commonwealth v. Vaughn, 471 Mass. 398, 403 (2015), and he has not shown that "better work might have accomplished something material for the defense," Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
The judge properly rejected the defendant's claim that trial counsel violated Mass.R.Crim.P. 14(a)(5), as appearing in 442 Mass. 1518 (2004), by providing the prosecutor with his (trial counsel's) notes from a witness interview, where the notes are not included in the record and, as such, we cannot say whether they were in fact protected. See Commonwealth v. Vaughn, supra.
The judge found that he "would not have been inclined to give [a missing witness] instruction" on the facts of this case. Accordingly, the defendant cannot show that requesting such an instruction "might have accomplished something material for [his] defense." Commonwealth v. Satterfield, supra.
The trial judge also correctly rejected the defendant's claim regarding the sufficiency of the evidence, on the basis that the victim's "testimony that the defendant committed an unwelcome touching of her vagina, if believed by a jury, is sufficient without more to support a conviction for indecent assault and battery." See Commonwealth v. Lawrence, 68 Mass. App. Ct. 103, 104 (2007). Because the evidence was sufficient, trial counsel was not ineffective for failing to move (a third time) for a required finding of not guilty. See Commonwealth v. Dargon, 457 Mass. 387, 404 (2010) (defendant must show that motion would have been successful).
Finally, the judge did not abuse his discretion in rejecting the defendant's claim that he (the judge) should have held a voir dire to determine the victim's competency, where "[n]othing in the trial record suggests that [the victim's] competency was questionable." "A child is not presumed to be incompetent to testify," Commonwealth v. Tang, 66 Mass. App. Ct. 53, 63 (2006), and the judge would not have been required to hold a voir dire, even if one had been requested. See Commonwealth v. Allen, 40 Mass. App. Ct. 458, 461 (1996). "[W]e discern no error of law or abuse of discretion in the judge's conclusion that the motion did not raise a substantial issue warranting an evidentiary hearing or a new trial." Commonwealth v. Cano, 87 Mass. App. Ct. 238, 244 (2015).
Order denying motion for new trial affirmed.